Himachal Pradesh High Court
Mukesh Kumar vs State Of Himachal Pradesh on 11 November, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.R. No. 142 of 2010.
Reserved on: 02.11.2016.
.
Decided on: 11.11.2016.
Mukesh Kumar ....Petitioner.
Versus
State of Himachal Pradesh ... Respondent.
_________________________________________________________________ Coram of The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes _____________________________________________________________ rt For the petitioner. : Mr. Satyen Vaidya, Senior Advocate, with Mr. Vivek Sharma, Advocate.
For the respondent : Ms. Parul Negi, Dy. A.G. Ajay Mohan Goel, Judge By way this revision petition, petitioner has challenged the judgment passed by the Court of learned Presiding Officer, Fast Track Court, Mandi, District Mandi, in Criminal Appeal No. 56 of 2008, dated 14.06.2010, vide which learned Appellate Court, while accepting the appeal filed by the State, set aside the judgment of acquittal passed in favour of the petitioner by the Court of learned Additional Chief Judicial Magistrate, Court No. 1, Sundernagar, in Police Challan No. 379-I/2004, dated 18.06.2008 and convicted the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 2petitioner for commission of offences punishable under Sections 279, 304-A of Indian Penal Code (hereinafter referred to as IPC) and Section 187 of the Motor Vehicle Act .
(hereinafter referred to as M.V.Act) and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of ` 1,000/- for commission of offence punishable under Section 279 of IPC, simple imprisonment of for a period of eighteen months and to pay a fine of ` 5,000/-
for commission of offence punishable under Section 304-A of rt IPC and simple imprisonment for a period of one month and to pay a fine of ` 500/- for commission of offence punishable under Section 187 of M.V.Act. All the sentences were ordered to run concurrently.
2. The case of the prosecution was that on 30.08.2003, at around 4:15 p.m., accused was driving Scooter bearing No. PB-10Z-3934 in a rash a negligent manner on National Highway-21 resulting in an accident and the death of Smt. Larju Devi at village Bhour after which the accused fled away from the spot. As per prosecution, on the fateful day, complainant Ram Pyari and her mother-in-law Smt. Larju Devi were on their way back home after attending the 'Kirtan' and while walking on the roadside, Smt. Larju Devi was hit by Scooter bearing No. PB-10Z-3934 being ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 3 driven by accused in a rash and negligent manner which caused fatal injury to her. It was further the case of the prosecution that after causing the accident, accused fled .
away from the spot leaving Smt. Larju Devi bleeding to death.
Information regarding accident was conveyed at police station Sundernagar through police station Balh, on which police party headed by HC Pushap Raj alongwith HC Karam Singh of No. 5, Constable Baldev Lal No. 226 and Constable Ram Lal No. 142 reached the accident site at village Bhour where rt complainant Ram Pyari get recorded her statement under Section 154 of Code of Criminal Procedure (for short 'Cr.P.C.'), on the basis of said statement of complainant, FIR No. 217/03 dated 30.08.2003 was registered against the accused for the commission of offences punishable under Sections 279 and 304-A of IPC at police station Sundernagar. The body of the deceased was sent for postmortem by the police. During the course of investigation, the offending Scooter was seized alongwith documents of the same. The scooter was subjected to mechanical examination and report of the mechanic who examined the same mechanically was also obtained, as per which, there was no mechanical fault in the Scooter.
Photographs of the accident site were taken, spot map was prepared and statements of witnesses under Section 161 of ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 4 Cr.P.C were recorded by the Investigator. Investigation revealed that death of Smt. Larju Devi took place on account of rash and negligent driving of the accused, who was driving .
his aforementioned Scooter on aforesaid date, time and place on National Highway No. 21. After the completion of investigation, challan was filed in the court and notice of accusation was put to the accused for commission of offences of punishable under Sections 279 and 304-A of IPC and Sections 187 and 196 of M.V. Act, to which he pleaded not rt guilty and claimed trial.
3. On the basis of evidence led by the prosecution both ocular as well as documentary, learned trial Court held that prosecution had failed to prove that the accused had committed offences punishable under Sections 279 and 304- A of IPC and Sections 187 and 196 of M.V. Act beyond reasonable doubt and on these bases, learned trial Court acquitted the accused by giving him benefit of doubt. While arriving at the said conclusion, it was held by the learned trial Court that the factum of death of the Smt. Larju Devi on 30.08.2013, at about 4:15 p.m. at village Bhour on National Highway No. 21 was not in dispute. It also took note of the fact that in his statement under Section 313 of Cr.P.C, accused had admitted that he was driving the said Scooter. It ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 5 was further held by the learned trial Court that the point for consideration which survived was as to whether the death of Larju Devi was the outcome of rash and negligent driving of .
the accused or not. Learned trial Court held that the FIR which was registered against the accused was on the basis of complaint of Smt. Ram Pyari recorded by the police under Section 154 of Cr.P.C. Ext. PW1/A. Learned trial Court of further held that complainant Ram Pyari entered the witness box as PW1 and a perusal of her statement demonstrated that rt in fact she had not witnessed the accident since she was walking ahead of her mother-in-law when Smt. Larju Devi was hit by the Scooter. Learned trial Court further held that complainant as per her own admission did not saw the Scooter coming and hitting her mother-in-law. On these bases, it was held by the learned trial Court that as the accident took place behind the back of the complainant, her statement to the effect that the accident took place on account of rash and negligent driving of the accused becomes a highly improbable version. It further held that since complainant did not saw the accident taking place, therefore, under these circumstances, statement of the complainant to the effect that Scooter was being driven by the accused in a rash and negligent manner and in a high speed was ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 6 unacceptable. Learned trial Court further held that PW2 Shri Thakru Ram who as per prosecution was an eyewitness also did not further the case of the prosecution since this witness .
had also admitted that he came to the spot after the Scooter had hit Smt. Larju Devi. It was further held by the learned trial Court that his statement did not clearly establish the manner in which the accident took place. On these bases, it of was concluded by the learned trial Court that the statements of PW1 and PW2 did not prove that the accident in fact took rt place on account of rash and negligent driving on the part of the accused. Learned trial Court further held that besides this, there was no evidence whatsoever to clearly establish that the accused in fact had fled away from the spot after causing the accident. On these bases, learned trial Court acquitted the accused by holding that the prosecution has failed to prove its case against the accused beyond reasonable doubt.
4. In appeal, learned Appellate Court while setting aside the judgment of acquittal so passed by the learned trial Court held that it was not a fact in dispute that the accident took place and the deceased died on account of injuries which she suffered from the said accident. Learned Appellate Court further held that it was well settled law that test in accident ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 7 cases was that whether accident could have been avoided by the respondent if he had exercised diligence which ordinarily a cautious person using the road in similar circumstances .
would have exercised. It further held that the question whether certain act is rash or negligent cannot be answered in the abstract and it must depend upon the time, place and nature of the road. Learned Appellate Court further held that of spot map Ext. PW7/D demonstrated that the road where accident took place was 22 feet wide and the same was a rt straight road and there was enough space on the right side of the accused and accused could have easily seen the deceased, who was going ahead of him on the road as it was broad day light. Learned Appellate Court further held that in these circumstances, accused could have avoided the accident by sewering his scooter to the right or by stopping it as a prudent driver. It further held that he could have at least sounded the horn and warned the deceased. By relying on the report of the mechanic, learned Appellate Court held that there was no mechanical defect in the vehicle and it appeared that there was no effort on the part of accused/respondent to avoid the accident. Learned Appellate Court further went on to hold that the testimonies of PW1 and PW2 clearly established that the accident occurred due to rash and ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 8 negligent driving of the accused who also fled away from the spot after causing the accident and it was clear from the statements of these two witnesses that the deceased and the .
complainant were walking on the left side of the road and the Scooter being driven by the accused came from the back side and dashed against the deceased and dragged her on the road up to 8 to 10 feet. Learned Appellate Court further held that of act of the respondent of hitting the deceased from the back and dragging her was nothing but an act of rash and rt negligent driving. It further held that statements of PW1 and PW2 who were eyewitnesses to the accident demonstrated that no suggestion was put to them that deceased suddenly appeared in front of the Scooter ridden by the accused nor this was so stated by the accused in his statement under Section 313 of Cr.P.C. On these bases, learned Appellate Court held that it was of the firm view that no two views were possible as from the evidence of PW1, PW2 and PW7, the only conclusion which could be drawn was that the accident took place due to rash and negligent driving of the Scooter being driven by the accused. On these bases, learned Appellate Court set aside the judgment of acquittal passed by the learned trial Court and convicted the accused for commission ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 9 of offences punishable under Sections 279, 304-A of IPC and Section 187 of M.V. Act.
5. Feeling aggrieved by the judgment so passed by .
the learned Appellate Court, the petitioner preferred the present appeal.
6. Mr. Satyen Vaidya, learned Senior Counsel appearing for the petitioner has argued that the judgment of of conviction passed against the present petitioner by the learned Appellate Court is perverse and the findings returned rt by the learned Appellate Court were not only erroneous but were also not borne out from the records of the case. Mr. Vaidya further argued that in fact a perusal of the impugned judgment clearly and categorically demonstrated that the findings returned by the learned Appellate Court were not based on material on record but were based on conjectures and surmises and assumptions drawn by the learned Appellate Court. It was argued by Mr. Vaidya that the perversity with the judgment passed by the learned Appellate Court was that the said Court lost sight of the fact that in criminal matters, adjudication cannot be made on the basis of conjectures, surmises and assumptions, but the findings must be returned on the basis of material which is produced before the court concerned. It was further submitted by Mr. ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 10 Vaidya that the conclusion arrived at by the learned Appellate Court that PW1 and PW2 were eyewitnesses to the accident was a totally perverse conclusion and was a result of .
complete misreading ad misconstruction of statements of these two witnesses. He further argued that even the spot map was totally mis-appreciated by the learned Appellate Court as learned Appellate Court lost sight of the fact that it of was not as if the deceased was hit on the side of the road but she was hit in the road where even otherwise a pedestrian rt was not to ordinarily walk. It was further argued by Mr. Vaidya that the judgment passed by the learned trial Court was a well reasoned judgment and keeping in view the fact that there was a judgment of acquittal in favour of the petitioner, the learned Appellate Court should not have had interfered with the same in the peculiar facts of the case especially in view of the material which was placed before the Court by the prosecution. On these bases, it was urged by Mr. Vaidya that the judgment passed by the learned Appellate Court was not sustainable in law and the same be set aside and the petitioner be acquitted.
7. Ms. Parul Negi, learned Deputy Advocate General, on the other hand, argued that the judgment passed by the learned Appellate Court was neither perverse nor it could be ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 11 said that the finding of guilt returned by the learned Appellate Court was not substantiated from the records of the case. Ms. Negi submitted that learned trial Court had erred in .
acquitting the accused as it stood established beyond reasonable doubt from the material which was placed on record by the prosecution that the accused was in fact guilty of offences for which he was charged. She further argued that of learned Appellate Court had rightly concluded that it stood established from the record especially from the statement of rt PW1 and PW2 who were the eyewitnesses to the incident that the accident had taken place on account of rash and negligent driving of the accused. She further argued that the findings returned by the learned Appellate Court to the effect that accident was avoidable if he had exercised diligence which ordinarily a cautious person using the road in similar circumstances would have done was based on correct appreciation of evidence placed on record and same called for no interference. On these bases, it was urged by Ms. Negi that as there was no merit in the revision petitioner, the same be dismissed.
8. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgments passed by both the Courts below.
::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 129. Before proceeding in the matter, it is relevant to take note of what is the scope of revisional jurisdiction of this Court. It is settled law that the scope of revisional jurisdiction .
of this Court does not extend to re-appreciation of evidence. It has been held by the Hon'ble Supreme Court that the High Court in exercise of its revisional power can interfere only if the findings of the Court whose decision is sought to be of revised is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the rt decision is based on no material or where the material facts are wholly ignored or where judicial discretion is exercised arbitrarily or capriciously. It has been held by Hon'ble Supreme Court in Sanjaysinh Ramrao Chavan Versus Dattatray Gulabrao Phalke and Others, (2015) 3 Supreme Court Cases 123, that unmerited and undeserved prosecution is an infringement of guarantee under Article 21 of the Constitution of India. In this case, Hon'ble Supreme Court has further held that the purpose of revision jurisdiction is to preserve the power in the Court to do justice in cases of criminal jurisprudence.
10. Coming to the facts of this case, a perusal of the statement of PW1 (complainant) demonstrates that she cannot be termed as an eyewitness because she has not seen ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 13 the occurrence of the accident. It has come in the cross examination of PW1 Ram Pyari that the age of the deceased was about 80 years and she was somewhat hard of hearing.
.
She has also admitted that when the accident took place she was walking ahead of her mother-in-law and she came to know about the accident only when she heard the noise. She stated in her cross examination that she did not saw the of Scooter coming and hitting her mother-in-law. It has also come in her statement that she became unconscious after the rt accident and gained consciousness after 1 ½ hour. Her testimony also does not seems to be trustworthy as besides being closely related to the deceased, on the one hand, she stated that after the accident she became unconscious and gained consciousness after 1 ½ hour and on the other hand, she stated that family members reached the spot in ten minutes.
11. A perusal of statement of PW2 Thakru Ram demonstrates that it has come in his cross examination that when he reached the spot, deceased was lying on the spot and that he had not witnessed the accident taking place.
12. The Investigating Officer had entered the witness box as PW7. He stated that he prepared the spot map on the spot which is Ext. PW7/B and also took photographs of the ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 14 spot. In his cross examination, he stated that he reached the spot at around 4:30 p.m. Now, incidentally, a perusal of spot map which is on record as PW7/B demonstrates that road .
where the accident took place was 22 feet wide and towards the side on which the deceased was walking alongwith PW1 six feet road was available in addition to the mettle road.
Mark B on the said spot is the position where the body of the of deceased was lying after the accident and mark B is not on the side of the road but is almost midway between the side of rt the road and centre of the road. Therefore, it is evident from the spot map that the deceased was walking on the main road when the accident took place. Now, as I have already discussed above, there is no eyewitness to the occurrence of the accident as neither PW1 nor PW2 has seen the occurrence of the accident. Learned trial Court while appreciating this aspect of the matter and after taking into consideration the entire evidence placed on record by the prosecution came to the conclusion that the prosecution was not able to prove beyond reasonable doubt the guilt of the accused. Learned Appellate Court while setting aside the findings so returned by the learned trial Court has justified the conviction of the accused by raising doubt that as the road where the accident took place was 22 feet wide and it was a straight road and ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 15 there was sufficient space on the right side, the accused could have easily seen the deceased and could have avoided the accident by sewering his Scooter to the right or by stopping it .
as a prudent driver or he could have at least sounded the horn to warn the deceased. These findings have been used by the learned Appellate Court to convict the accused. I am afraid that the conviction passed on the abovesaid findings of returned by the learned Appellate Court cannot be said to be sustainable in law. It is settled law that in order to convict a rt person, his guilt has to be established by the prosecution beyond reasonable doubt. In other words, if there is some doubt in the case of prosecution, then he deserves the benefit of doubt. In the present case, the petitioner could not have been convicted for committing offences punishable under Sections 279 and 304-A of IPC on conjectures and surmises as has been done by the learned Appellate Court. It has not been appreciated by the learned Appellate Court that the accident had taken place on a National Highway where unfortunately the deceased, who was 80 years old and also hard of hearing, was not walking on the side of the road but was walking almost in the road, which road as per statement of daughter-in-law of deceased (PW1), was frequented by thousands of vehicles everyday (PW1 had stated in her ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 16 statement that about 10 thousand vehicle ply on the said road everyday). Not only this, the findings returned by the learned trial Court that PW1 and PW2 are eyewitnesses to the .
occurrence of the accident are perverse findings because neither PW1 nor PW2 has seen the occurrence of the accident and this is prima facie evident from the perusal of their statements itself. In these circumstances, in my considered of view, the judgment of conviction passed by the learned Appellate Court against the accused setting aside the rt judgment of acquittal in his favour passed by the learned trial Court is not sustainable as the findings returned by the learned Appellate Court are not borne out from the records of the case but are perverse findings based on conjectures and surmises and are contrary to the evidence on record. Learned Appellate Court has also not appreciated that there was no cogent evidence produced on record by the prosecution to conclude beyond reasonable doubt that petitioner had fled away from the accident site after causing the accident.
13. Learned Appellate Court also did not appreciate that it is settled law that Appellate Court shall not reverse the judgment of acquittal because another view is possible to be taken. It has not been appreciated that the Appellate can overrule or otherwise disturb the trial Court's acquittal if it ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 17 has 'very substantial or compelling reasons' for doing so.
Honble Supreme Court in Mohammed Ankoos and Others versus Public Prosecutor, High Court of Andhra Pradesh, .
Hyderabad, (2010) 1 Supreme Court Cases 94 has held "12. This Court has, time and again, dealt with the scope of exercise of power by the Appellate Court against judgment of acquittal under Sections 378 and 386, Cr.P.C. It has been repeatedly held that if two views are possible, the Appellate Court of should not ordinarily interfere with the judgment of acquittal. This Court has laid down that Appellate Court shall not reverse a judgment of acquittal rt because another view is possible to be taken. It is not necessary to multiply the decisions on the subject and reference to a later decision of this Court in Ghurey Lal v. State Of Uttar Pradesh1 shall suffice wherein this Court considered a long line of cases and held thus :
(SCC p.477, paras 69 -70) "69. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when (2008) 10 SCC 450 he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 18
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to .
take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
70. In light of the above, the High Court and other appellate courts should follow the well- settled principles crystallised by number of of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1.rt The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons"
for doing so.
A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
(i) The trial court's conclusion with regard to the facts is palpably wrong;
(ii) The trial court's decision was based on an erroneous view of law;
(iii) The trial court's judgment is likely to result in "grave miscarriage of justice";
(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court's judgment was
manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence
or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP 19
(vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration to the findings .
of the trial court.
3. If two reasonable views can be reached-
-one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused."
Therefore, in view of the above discussion, the of revision petition is allowed and the judgment of conviction passed by the Court of learned Presiding Officer, Fast Track Court, Mandi dated 14.06.2010 is set aside and the petitioner rt is acquitted of offences punishable under Sections 279 and 304-A of IPC and Section 187 of M.V. Act as the prosecution has not been able to prove beyond reasonable doubt that the petitioner had committed the said offences. Fine amount, if any deposited by the petitioner be returned to him in accordance with law. The criminal revision petition is disposed of accordingly. Pending miscellaneous application(s), if any, also stand disposed of.
(Ajay Mohan Goel) Judge 11th November, 2016.
(narender) ::: Downloaded on - 15/04/2017 21:32:35 :::HCHP